ignorantia juris non excusat [Ignorance of the law does not

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Transcript of ignorantia juris non excusat [Ignorance of the law does not

Onus probandi [the burden of proof]Freedom of contract (laissez faire)Everything, which is not prohibited, is allowed... BUT BEWARE OF LIMITATIONSPacta sunt servanda [agreements must be kept]Beware of limitations:Caveat emptror [let the buyer beware]semper necessitas probandi incumbit ei qui agit [the necessity of proof always lies with the person who lays charges]

Vigilantibus iura scripta sunt [the laws serve the vigilant]Timely use and protection of rights is essential in commercial transactions, e.g.:statute of limitationstimely complaints in contracts for workpriority of registrationsFamous, but not universal rule!Implied warranties (by law): different scope in different circumstances in different countries! Do not assume anything!bona fides [good faith]generally, the presumption of existence of good faith applies

everybody has the right to assume that the other party deals in good faithContra proferentem rule and construction of contracts[interpretation against the draftsman][Not only] contracts are sometimes unclear; how to deal with discrepancies in their construction?ignorantia juris non excusat [ignorance of the law does not excuse]survival guide to basic legal principlesin business transactions

www.juriglobe.ca (University of Ottawa)www.wikipedia.orgGreatest extent of Roman empire (under Trajan)Antitrust lawInsolvencyPublic policyConsiderationCausaContractual penaltiesEmploymentRegulated industriesClarity (specificity)Interference with ius in remInterference with "status" rulesInterference with state authorityForce majeure (vis major)ModerationExonerationRe-classificationAvailable legal remedies99 year contractsUsuryConsumer protectionFrustration (by operation of foreign law)Beware of reversal in some circumstances in certain countries:employment (discrimination)due care (management)legal assumptionsNote: different standards of evidence in different countries and different circumstancesTest of the "reasonable recipient of the communication"Context and communication between partiesBehavior of the partiesTypical meaning in the relevant industryChoice of lawOne contract - one governing lawWhich law to apply for cross-border transactions?

One of the parties' law? New York? English? Swiss?Choice of jurisdictionCourts or arbitration?ENFORCEABILITY is key!Secondary considerations:- costs- understanding of the industry- procedural rules- evidence rules- availability of temporary injunctions- professionalism of the bodyLanguage and form of contractsIs local language a condition to valid contract?Does the party have to understand the language in which it signs the contract?Can a contract be bi-lingual?Different forms: recorded telephone conversation - email - exchange of letters - notarial deed - deedContractual warranties / representations of the seller: what if the purchaser knows that they are not true?